ABODAKPI AND ANOTHER vs. THE REPUBLIC [2001-2002] 1 GLR 450

CASES REFERRED TO

(1) Asamoah v The Republic [1972] 1 GLR 117.

(2) Seldon v Davidson [1968] 1 WLR 1083; [1968] 2 All ER 755; 112 SJ 463, CA.

(3) Republic v Asare (TO) [1968] GLR 727, CA.

APPLICATION to the Court of Appeal under rule 27A of the Court of Appeal (Amendment) Rules, 1998 (CI 21) by the applicant-accused who was being tried summarily on a criminal charge with another accused before the High Court, for an order of the Court of Appeal staying the criminal proceedings before the High Court pending the determination by the Court of Appeal of his interlocutory appeal against the ruling of the High Court dismissing his application for the mode of his trial to be changed to one on indictment. The facts are sufficiently stated in the ruling of Omari-Sasu JA.

Kwabla Senanu for the applicant.

A Gyambiby (Principal State Attorney) (with him Augustine Obuor, Assistant State Attorney) for the respondent.

Omari-Sasu JA. We yesterday dismissed the application for stay of proceedings made by the first accused-appellant-applicant (hereinafter referred to as the applicant) and reserved the reasons to be read today. We now proceed to deal with the said reasons as follows.

This is a repetition of an application by the applicant for stay of proceedings in the Fast Track High Court being presided over by our brother Farkye JA—sitting as an additional High Court judge pending the determination of the applicant’s Interlocutory appeal against the ruling of our said brother who has refused to stay his proceedings. The appellant brings his application under rule 27A of the Court of Appeal (Amendment) Rules, 1998 (CI 21) which provides: “The Court may in any interlocutory appeal, civil or criminal before it, grant stay of proceedings pending the determination of the interlocutory appeal subject to such terms as the Court considers fit.” (The emphasis is ours.)

Section 27 of the Interpretation Act, 1960 (CA 4) provides: “In an enactment made after the passing of this Act, ‘shall’ shall be construed as imperative and ‘may’ as permissive and empowering.” This means that in considering the present application, we have a

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discretion in either granting or refusing to grant the application depending upon the merits of the application.

The reasons why the present application has been brought are set out in paragraphs (4) and (5) of the applicant’s affidavit which was filed on 14 November 2002 and are as follows:

“(4) That on 25 October 2002 my counsel raised objection to the mode of trial, stating categorically that, given the charges which are complicated or intricate in character, the involvement of all the paraphernalia of the criminal machinery, demanding the prosecution of the matter by a principal state attorney and other state attorneys being led by the Director of Public Prosecutions himself, the numerous witnesses to be called and the varied legal issues involved in the case, I can only have a fair trial if the mode of trial is on indictment rather than by summary trial.

(5) That the complicated character of the trial would, I am told, involve the calling of several witnesses, many knotty legal issues would arise and the time of the trial would take a long time, coupled with the maximum sentence of 25 years that goes with the charge of defrauding, assuming—though not for one moment admitting—that I am convicted on that particular charge.”

Learned counsel for the applicant elaborated on the above quoted two paragraphs and further submitted that if a liberal interpretation is placed on sections 4,131,179A and 179(1) of the Criminal Code, 1960 (Act 29) and also on sections 2, 179 and 296(5) of the Criminal Procedure Code, 1960 (Act 30) one would of necessity come to the conclusion that the applicant should have been tried on indictment and not summarily and thus the applicant has a great chance of success in his interlocutory appeal.

In replying for the Republic-respondent, the learned principal state attorney said the prosecution examined the offences charged and complied with section 2 of Act 30 and when they found that they were to comply with section 2(3) of Act 30, they did the same and proceeded against the applicant and the second accused summarily. It was also said on behalf of the respondent that in the court below the applicant invoked the provision of section 179 of Act 30

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and prayed that the learned trial judge should recommend to the Attorney-General that the case should be tried on indictment. The learned trial judge examined the application but refused it as being unmeritorious after he had analysed in detail section 2 of Act 30 which deals with the mode of trial of criminal offences.

It was further submitted that the granting of the present application will lead to chaos and disaster particularly in the lower courts. In this particular case where two persons have been charged and only one is going on an interlocutory appeal, it was said the granting of the application will delay the hearing of the substantive case and cause hardship and inconvenience to the trial court and to the second accused who has not appealed. Finally, it has been observed that the applicant has failed to show either that the prosecution has failed to discharge their statutory duties or they have been malicious or capricious; the present application should fail.

We have read all the processes filed in the present application and have examined the legal provisions and decided cases cited together with the arguments advanced and we have come to the following conclusions: First, where (as in the present case) two persons are jointly charged and are being jointly tried summarily and one of them makes or raises a preliminary legal objection which is overruled and he appeals, it will not only be improper but wrong for us to order a stay of proceedings in the court below since the stay shall not only occasion delay in the trial but it will also lead to hardship on the party who did not appeal and inconvenience for the court and the party who did not appeal as the case is a part heard. In this connection, we adopt with approval the reasoning in the case of Asamoah v The Republic [1972] 1 GLR 117 per Abban J (as he then was) which was cited by learned counsel for the Republic respondent.

Secondly, where the granting of stay of proceedings is likely to lead to chaos in the administration of justice the application has to be refused. In the English Court of Appeal case of Seldon v Davidson [1968] 1 WLR 1083 at 1089, CA Edmund Davies LJ observed as follows:

“If, however, it be right that, whenever a judge makes a ruling in a county court matter, the party against whom that ruling is given may, in effect, say: ‘I do not want this county court hearing to proceed any further; I want to go to the High Court

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to get the ruling tested,’ and, upon such an application being made, the county court judge adjourns the case, it may well be that a chaotic state of affairs would arise.”

We are by no means saying that a party against whom a ruling is made has no right of appeal. Far from this, but the timing of the appeal is material. In a summarily trial a party may appeal when at the close of the case for the prosecution he is wrongfully overruled. He can also appeal at the end of the trial if the decision goes against him but to pray that proceedings should be stayed because an objection has been overruled in a case such as ours, will subject summary trials to abuse and chaos.

Thirdly, and most importantly the bone of contention in the application before us concerns the mode of trial in criminal cases. This is governed by law and in our case it is governed by sections 2 and 179 of Act 30. Section 2 of Act 30 places triable criminal offences under three categories: section 2(1) deals with offences that shall be tried summarily, and section 2(2) deals with offences that shall be tried on indictment. Thus where by its very nature an offence falls under either section 2(1) or (2) of Act 30, neither the Attorney-General nor a court nor an accused person can change the mode of trial. In the above two areas the classification in Act 30 must be strictly adhered to. It is only under section 2(3) of Act 30, which states: “Every other offence shall be triable on indictment or summarily”, that the Attorney-General has an unfettered discretion or choice in the mode of trial. In our case the offences charged rightly come under section 2(3) of Act 30. The question is should the present application be entertained? The answer is in the negative. In our case the applicant talks about the charges being “complicated and intricate in character and numerous witnesses to be called.” He also says the trial would take a long time to conclude coupled with the maximum sentence of 25 years which may be slammed on him if he is found guilty.

It is our considered view that the above sentiments, which are in the main speculative, do not form the legal yardstick for determining the mode of trial of any criminal offence. Holding (3) in the headnote in the case of Republic v T O Asare [1968] GLR 727, CA is not binding on us. Although it was given by a court of co-ordinate jurisdiction, the offence which was considered in their holding (3) was that of “deliberate dissipation of public property” which was under section 8 of the Public Property (Protection) and Corrupt [p.456] of [2001-2002] 1 GLR 450 Practices (Prevention) Act, 1962 (Act 121) and not any of the offences the applicant faces. It was for the above reasons that the application was refused yesterday.

Owusu JA. I agree.

Asiamah JA. I also agree.

Application dismissed.

DRKS